Implementing the Mandates Imposed on Covered Entities By Section 1557 of the ACA

What Is Protected Under Section 1557?

There are many prohibitions contained in Section 1557, covering a wide range of subject matter. For example, Section 1557 prohibits a covered entity from segregating, delaying or denying services or benefits based on an individual's race, color or national origin, and delaying or denying effective language assistance services to people with limited English proficiency (LEP). Similarly, Covered Entities are required to afford equal access to health care, health insurance coverage and other health programs without discrimination based on sex, including pregnancy, gender identity or sex stereotypes. People must be treated in a manner that correlates with their gender identity regarding access to facilities, including examination rooms, restrooms and patient rooms.

Additionally, as a general rule, under the statute, Covered Entities are barred from excluding, denying or limiting benefits and services due to a person's age, unless age is a criteria necessary to the normal operation or accomplishment of a goal of the program or when such disparate treatment is warranted by medical or scientific proof. Nor can a person be excluded or denied benefits or services on the basis of his or her disability.

Obligations of Covered Entities Concerning People with LEP

Section 1557 obligates covered entities to implement reasonable measures to ensure meaningful access to health care programs and benefits to people with limited English proficiency. Such measures include, but are not limited to, oral language assistance or written translations.

Notably, Covered Entities are duty-bound to publish notices of non-discrimination and taglines (which essentially are brief statements) in languages other than English in significant publications, and to post them in conspicuous locations and on their websites to alert people about the availability of language assistance services. Those taglines must be issued in at least the top 15 non-English languages spoken in the state in which the Covered Entity is located or does business. In order to diminish costs to Covered Entities, the Office of Civil Rights (OCR) has translated a template notice and taglines that have been translated into 64 languages and that are accessible on the website of HHS.

Additionally, a Covered Entity is required to offer a qualified interpreter when oral interpretation is appropriate in ensuring a person with LEP meaningful access. In those situations where language assistance is mandated, the Covered Entity must provide it free of charge and in a timely fashion.

There are further restraints on a Covered Entity's ability to provide language assistance services. For example, a Covered Entity is prohibited from: 1) having a person provide his or her own interpreter; 2) employing unqualified multi-lingual staff as interpreters; 3) utilizing poor-quality video remote interpreting services; 4) using a minor child to serve as an interpreter, with the exception of life-threatening emergencies where a qualified interpreter is not readily available; and 5) using interpreters preferred by the patient where there exist competency and confidentiality issues.

Obligations with Respect to Patients with a Disability

Section 1557 prohibits Covered Entities from excluding or denying benefits or services to a person on the basis of his or her disability. Consistent with this broad mandate, Covered Entities are required to implement the following measures:

• Make reasonable adjustments to practices, policies and procedures where needed to afford equal access for people with disabilities. By way of illustration, “no pet” policies must provide an exception for individuals who have service animals.
• Make all programs and activities afforded electronically accessible to people with disabilities.
• Make newly constructed and modified facilities physically accessible to people with disabilities.
• Provide auxiliary aids and services to people with disabilities, free of charge and in timely fashion, including, for example, qualified sign language interpreters, large print materials, text telephones and screen reader software.

Compliance Coordinators, Gender Coding and Assurances of Compliance

Section 1557 mandates that Covered Entities with 15 or more employees have a grievance procedure and a compliance coordinator. The former provides a mechanism by which those individuals who feel aggrieved or who feel they are the subject of discrimination can protest such treatment. The compliance coordinator is essentially the operational manager responsible for ensuring the implementation and efficacy of the Covered Entity's Section 1557 efforts.

Covered Entities were required, by July 18, 2016, to make necessary changes in claims processing systems to handle issues associated with gender-based coding. However, due to the recognition that the computer systems of some Covered Entities may only have binary gender billing codes that indicate a gender mismatch for some sex-specific services, Covered Entities are authorized to rely on workable interim measures to fix coverage denials based upon this issue until their computer systems are updated.

Covered Entities are also required to file an Assurance of Compliance form in which they acknowledge their obligations under and compliance with the mandates of Section 1557, and that such compliance is a condition of continued receipt of federal financial assistance.

Enforcement Efforts By the OCR

The OCR is the enforcement arm of HHS with respect to violations of Section 1557, and investigates thousands of complaints of discrimination annually. Where violations are found, OCR has an array of remedial measures, including requiring the Covered Entity to retool practices, policies and procedures, or to commence or enhance training and monitoring efforts. Conceivably, compensatory damages can be imposed as well.

Thus, for example, in a case of transgender discrimination, the OCR entered into a voluntary resolution agreement with a hospital that required the hospital to revise its admission policy and its room placement policy to ensure proper room placement for transgender patients; to train staff to prevent and address denigrating statements and poor treatment based on sex; and to be monitored by the OCR for two years.

In another case, where a patient complained that he was harassed by hospital staff because he was admitted as a male victim of domestic violence, the OCR ordered that the hospital staff be trained to prevent sex stereotyping and the hospital revised its abuse procedures to allow for gender-neutral protocols for reporting incidents of domestic abuse.

In yet another example, where a hospital failed to provide an interpreter to the mother of a child who was at the hospital for a dog bite, but rather had the child interpret for the mother, the OCR provided the hospital with technical assistance concerning its obligation to provide meaningful access for people with limited English proficiency and assistance regarding its obligation to convey information in critical documents (for example, discharge instructions) in proper form for those with LEP. The hospital also retrained its staff on such issues, modified its LEP policy to ensure timely intervention of language assistance services and posted signs in multiple languages at various locations in the hospital informing patients of the availability of free interpreter services.

To the extent a Covered Entity fails to implement corrective measures, the OCR is authorized to commence proceedings to suspend or terminate the Covered Entity's federal financial assistance from OCR or even pass the matter on to the United States Department of Justice (DOJ) for potential enforcement action. Section 1557 also endows private individuals with the ability to litigate claims of discrimination against Covered Entities.

***** Andrew Zwerling is a partner-director at Garfunkel Wild, P.C. and a member of the firm's Litigation and Arbitration Practice Group and its Employment Law Practice Group. Marianne Monroy is a partner at the firm, and is the Chairperson of the firm's Employment Law Practice Group and a member of its Litigation and Arbitration Practice Group.